The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KRISTOPHER MCGEE,
Plaintiff,
Civil Action 2:20-cv-1625
v. Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson
S UCIU, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Motion for Default Judgment. (Doc. 7). For
the reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be DENIED.
The Undersigned granted Plaintiff’s Motion for Leave to Proceed in forma pauperis on
April 1, 2020, and directed the United States Marshal to effect service by certified mail. (Doc. 2).
On May 12, 2020, Plaintiff filed a “Declaration for Entry of Default.” (Doc. 5). Because the
docket did not reflect executed service on any Defendant, the Clerk did not enter default. On June
24, 2020, when the docket still did not reflect that Defendants had been served, the Clerk prepared
another service packet and resent it to the United States Marshal for service. Shortly thereafter,
on July 13, 2020, summons were returned executed as to Defendants David Suciu, Erin Fuller, and
Nurse Brown, making their answers due by July 23, 2020. On July 17, 2020, Plaintiff filed a
Motion for Default Judgment. (Doc. 7). Defendants timely filed their answers on July 22 and July
23, 2020. (See Docs. 8, 10). The Undersigned issued a scheduling order on July 23, 2020. (Doc.
12).
As Defendants note in their responses to Plaintiff’s Motion, (see Docs. 9, 11), under Rule
12(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Defendants’ 21-day timeframe within
which to respond to the Complaint did not begin until they were served on July 2, 2020.
Defendants, therefore, had until July 23, 2020, to respond to Plaintiff’s Complaint, and they timely
did so on July 22 and July 23, 2020. (See Docs. 8, 10). Accordingly, because Defendants timely
responded to Plaintiff’s Complaint, they are not in default, and it is RECOMMENDED that
Plaintiff’s Motion for Default Judgment (Doc. 7) be DENIED.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
days of this Report, file and serve on all parties written objections to those specific proposed
findings or recommendations to which objection is made, together with supporting authority for
the objection(s). A judge of this Court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made. Upon
proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: July 28, 2020 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE